Pattison v Bellin

[2000] FCA 1167

FEDERAL COURT OF AUSTRALIA

Pattison (Trustee), In the matter of Bellin (Bankrupt) v Bellin [2000] FCA 1167

BANKRUPTCY – trustee’s remuneration – resolution of creditors regarding remuneration previously passed – previous remuneration approved – approval for future fees up to certain amount – approval required for remuneration over certain amount – creditors paid in full – whether creditors can approve further remuneration when paid in full – whether creditors reserved to themselves the power to award future remuneration – Federal Court of Australia does not have power to fix remuneration of trustee. 

Bankruptcy Act 1966 (Cth): s 162

Re Hatcher; Ex parte Hatcher (unreported, French J, 6 November 1987) distinguished

IN THE MATTER OF BERYL RITA BELLIN

PAUL ANTHONY PATTISON (as Trustee of the Bankrupt Estate of BERYL RITA BELLIN) v BELLIN
V 7248 of 2000

GOLDBERG J
22 AUGUST 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7248 of 2000

IN THE MATTER OF BERYL RITA BELLIN

BETWEEN:	PAUL ANTHONY PATTISON (as Trustee of the Bankrupt Estate of BERYL RITA BELLIN) Applicant
AND:	BERYL RITA BELLIN Respondent

JUDGE:	GOLDBERG J
DATE:	22 AUGUST 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant is the Trustee of the bankrupt estate of the respondent. The issue before the court is whether the Trustee is entitled to be paid an amount for remuneration and costs and expenses incurred in the administration of the estate in addition to amounts already received by him as a result of an earlier resolution of the creditors of the respondent. In addition to the remuneration he has already received, the applicant claims to be entitled to be paid a further $32,927.60 in respect of remuneration and a further $1,379,67 in respect of costs and expenses incurred in administering the estate of the respondent. The Trustee seeks to have these amounts fixed, pursuant to s 162 of the Bankruptcy Act 1966 (Cth) (“the Act”), either pursuant to the Bankruptcy Regulations or by resolution of the creditors of the respondent or by the Court.

2. The reason why the Trustee has applied to the Court is that a resolution of the respondent’s creditors was passed on 2 September 1997 in respect of the Trustee’s remuneration costs and expenses.  The resolution was  in the following terms:

   “That the remuneration of the trustee be fixed on the hourly system at the rates laid down or recommended from time to time for bankruptcy work by the Insolvency Practitioners Association of Australia for the Melbourne District together with out of pocket expenses necessary and reasonably incurred to 31 July, 1997 in the sum of $8,916.49 and that the trustee can draw the remuneration and expenses on a monthly basis or as required and that future remuneration to finalisation of the administration be limited to $20,000 before further authorization from creditors was required.”

3. The Trustee’s further amended application seeks answers to the following questions:

   “1.Is the Applicant entitled to claim remuneration, costs and expenses in respect of administering the estate…